Why It Doesn't Matter Whose Name Is on The House in an Illinois Divorce

The house is in my name so it’s mine! Wait?! Is that true??

So you’re thinking about divorce and how it might affect what you own. Specifically, you’re thinking about your house. It’s a classic cedar frame home in the heart of Roscoe Village. Good school district. Low crime. A solid investment.

You and your spouse bought it about a year after you got married. For one reason or the other, your spouse isn’t on the deed or the mortgage.

Now that you’re thinking about divorce, the question is who has rights to the house: you, your spouse, or both of you.

I wouldn’t fault you for thinking that you have rights to the house and nobody else. I mean you are the only name on the deed and mortgage. End of story, right?

Wrong.

When it comes to splitting property in a divorce, whose name is on something is only the beginning of the story. In fact, it’s generally the least important part of the story.

Let’s do quick review of how property is divided in a divorce.

So, before you get married, everything you own is yours.

Sure, other people might have some sort of legal claim to what you have - whether it’s because of a lien, mortgage, trust, or something else like that - but nobody has a claim to your property just because they are in a romantic relationship with you.

And that’s true after you get married as well - your spouse doesn’t have a claim to your property just because you are in a romantic relationship - they have a claim because you two entered into a legally binding relationship, a state-sanctioned relationship - a marriage!

Marriage is a game changer. With it comes all sorts of rights and relationships - for the most part we don’t think about them. If the marriage is going well, we are working as a team, building a future together.

When things break down and our future becomes less certain, we have to start thinking about what’s mine and what’s yours.

When you get married, three property categories are created out of thin air: Your non-marital property, your spouse’s non-marital property, and the marital property. Marital means “of the marriage.”

Those three categories are like baskets, and each piece of property you own is in one of those baskets.

Some property could be in multiple baskets, and property can move from one basket to another depending on how it’s treated. We’ll go into that in greater detail in another blog post.

When you get divorced, though, all that stops. The baskets are wired shut and all property is permanently categorized in one way or the other.

Ok, so let’s talk about that house with your name on it again.

That should go in your “non-marital” basket, right? Wrong.

Whether something is marital or non-marital has little to do with the names on the property.

It has more to do with when it was purchased, with what funds, and what intent.

So that house, you and your spouse bought during the marriage, that just has your name on it? It’s probably going in the marital property basket. Parts of it could be in your non-marital basket, but that’s gonna be the exception, not the rule.

If you want to dive into the nitty gritty of your case, you should talk with a lawyer.